::Explained by Pasadena Criminal Defense & DUI Attorney Ann Gottesman

YOUR FIFTH AMENDMENT RIGHT TO REMAIN SILENT IS BEING CHIPPED AWAY: NEW US SUPREME COURT RULING IN SALINAS V. TEXAS

The U.S. Supreme Court recently decided the case of Salinas v. Texas; 2013 DJ DAR 7669; DJ, 6/18/13; in which the Court ruled that in some situations, a person who remains silent in the face of police questioning can actually be incriminating themselves and the prosecutor can use the defendant’s silence to show they are guilty during a criminal trial. This is clearly absurd, but this is what the U.S. Supreme Court has effectively ruled in Salinas v. Texas, which was decided this month.

In Salinas, the defendant was not technically in custody at the time he was being questioned by police. As in many instances, the police detective asked the defendant if he would talk to them about a crime they were investigating. The defendant made the classic mistake of agreeing to talk to the police without a criminal defense attorney present. At the police station, the detective asked the defendant if the shotgun he possessed would match the gun shells police recovered at the scene of a murder. The defendant looked down and refused to answer. (He was silent.) At trial, the prosecutor used the defendant’s silence to argue consciousness of guilt! His attorney argued that using his client’s silence during the police interview to demonstrate a consciousness of guilt violated his 5th amendment right to remain silent. Unfortunately, the US Supreme Court ruled that since the defendant was not in custody at the time, his silence could later be used against him unless he affirmatively asserted his 5th Amendment right to remain silent by stating that he did not wish to speak. Furthermore, officers were under no obligation to even tell him that he had a right to remain silent and to have an attorney present prior to any questioning because the defendant was not officially in custody. The defendant’s silence was not sufficient to “claim” his right to remain silent. In other words, you must say something to the effect of “I don’t want to talk to you, and I want an attorney.”

I used to tell all my clients that if they are ever approached by a police officer or a detective, never speak to them without an attorney present. Now I tell clients, that you must verbalize your desire NOT to speak to the police by stating that you wish to remain silent and want a lawyer.

PEOPLE v. OLGA RUTTERSCHMIDT: SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION: THE RIGHT TO CONFRONT AND CROSS EXAMINE

(Filed 10/15/12 (see lead case, S177046.))

This interesting case was decided in October of 2012 by the California Supreme Court. Two grandmothers in their mid-seventies, Ms. Rotterschmidt and Golay were convicted of intentionally running over two homeless men in their vehicle after purchasing large life insurance policies on both men. The women were accused of drugging each victim before running over the men on two separate occasions in an alley. The evidence indicated each victim was lying down in the alley before they were run over. Both women were criminally accused and charged with special circumstance murder and conspiracy to commit murder for financial gain.

At trial the prosecutor presented the testimony of a certified blood-alcohol analyst, Mr. Muto, to show the victim’s blood contained drugs known to cause drowsiness and confusion. Mr. Muto was the laboratory director but he had not personally tested the blood samples. The analysts that had tested the samples worked under the Mr. Muto’s supervision and were not in court to testify. Mr. Muto testified to what was in the report prepared by the analysts who actually tested the blood.

The defendants’ criminal defense attorney objected to Mr. Muto’s testimony, claiming that such testimony violated defendant’s Sixth Amendment right to confront and cross examine the laboratory analysts at trial. The court over ruled the defense attorney’s objection.

Ultimately, the California Supreme Court decided not to decide the issue of whether the trial court erred in allowing Mr. Muto to testify on blood test results obtained by nontestifying analysts and memorialized in a written report. The Court notes, “Violation of the Sixth Amendment’s confrontation right requires reversal of the judgment against a criminal defendant unless the prosecution can show “beyond a reasonable doubt” that the error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24; see also People v. Geier (2007) 41 Cal.4th 555, 608.)” Since the evidence of guilt was overwhelming in the Justices’ opinion, the verdict would not be over turned even if the Defendants’ confrontation rights were violated. In other words, if excluding the lab director’s testimony would not have possibly resulted in a better result for the accused, then any mistakes made were “harmless.”

See full opinion: http://www.courts.ca.gov/opinions/documents/S176213.PDF

MISSOURI V. MCKNEELY: CAN A DRUNK DRIVER BE FORCED TO PROVIDE A BLOOD TEST WITH OUT CONSENT AND WITH NO WARRANT?

The United States Supreme Court heard oral arguments on January 9, 2013, regarding the constitutional issue of whether a categorical exception to the warrant requirement in all DUI/ DWI cases is constitutional under the Fourth Amendment which protects citizens from unreasonable searches and seizures. The prosecutor claims that because blood alcohol will eventually dissipate in a drunk driver’s blood stream, this means evidence is potentially being lost with every passing moment. The Prosecutor argued that if evidence is being lost during the time it would take a police officer to secure a warrant, then this constitutes an “exigent” circumstance which should allow a police officer to force a blood draw without first securing a warrant or consent from the driver.

Of course, in California and most states, if a person refuses to give a chemical test, that in itself, can constitute a crime in which the penalties are even greater than a DUI. But the main question the U.S. Supreme Court is asking is whether a blood draw can be done without consent from the driver and without a warrant “based solely on an officer’s authority?”

The Missouri Supreme Court which suppressed the blood results pointed that the 1966 U.S. Supreme Court case of Schmerber v. California ruled by a five-to-four decision that it does not violate the Fourth Amendment for police to force the taking of a blood sample without a warrant from a driver who was in an accident and suspected of being under the influence of alcohol at the time. In Schmerber the Court said: “Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned.” Most notably, the Court stated that the judgment they reached in Schmerber was made “only on the facts of the present record.” So is Schmerber only applicable to cases with the same facts?

It is hard to say which way the U.S. Supreme Court will rule in McNeely based upon the oral arguments, but it is certainly possible that a 5 to 4 decision in favor of requiring a warrant or consent on run-of-the-mill DUI cases will be the result. Those who hold our constitutional rights dear are hoping for this ruling!

The ACLU is representing Mr. McNeely in this important case.

SEARCH AND SEIZURE: LAW ENFORCEMENT PLACING A GPS TRACKING DEVICE ON YOUR CAR:

In the 2012 case of U.S. v. Jones, the U.S. Supreme Court held that the attachment of a GPS tracking device to a vehicle and the use of the GPS device to track the vehicle is a search within the meaning of the Fourth Amendment to the United States Constitution.

Existing law states the grounds upon which a search warrant may be issued. AB 2055 states that a search warrant may be issued to place a GPS tracking device on a person’s vehicle when the information sought to be received from the tracking device would tend to show that either “a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code has been committed or is being committed, tends to show that a particular person has committed that act or is committing that act, or will assist in locating an individual that has committed or is committing that act.”

The bill requires that a tracking device search warrant issued must “ identify the person or property to be tracked, and specify a reasonable time that the device may be used, not to exceed 30 days, plus extensions, as provided. The bill would require that the warrant be executed within 10 days.…”

In an apparent response to the overflowing prison population and the U.S. Supreme Court’s insistence that the prison populations be reduced to 137 percent by May 24, 2013, Governor Jerry Brown signed into law A.B. 109. This bill essentially transferred responsibility from the state to the counties of inmates who are considered “nonserious, nonviolent and non-Pen C §290 registerable sex offenders”. Realignment mostly affects felony sentencing and post release supervision and parole revocation.

Beginning on July 1, 2013, the local counties will take over the parole revocation process. Until then, the Board of Parole Hearings will continue to process parole revocation hearings.

Specifically, after July 1, 2013, the Board of Parole will then only be responsible for the following type of hearings (standard parole revocation hearings will be done by the county):

Medical parole hearings

Mentally disordered offender cases

Parole considerations for lifers; and

Sexually violent predator cases

NEW CRIMINAL LAWS EFFECTIVE JANUARY 2011

::Explained by Pasadena Criminal Defense Attorney Ann Gottesman

Our California legislators have enacted several new criminal laws that have become effective this year in 2011. As a Pasadena criminal defense lawyer, I believe it is important for California criminal attorneys to be knowledgeable in these new laws and it is just as important that the public know about them as well. I have summarized some of these laws below. Unless otherwise noted, these new criminal laws went into effect on January 1, 2011.

Grand Theft property value: The dollar amount of the stolen property has been increased: Prior to January of 2011, in order to be convicted of grand theft, the value of the property stolen must have been at least $450. As of January 1, 2011, the new threshold amount is $950. Grand theft can be charged as either a felony or misdemeanor. Prior to this year, a District Attorney could charge a person with a felony if the value of the stolen goods was $450 or more. The new law now requires the stolen goods be worth at least $950 before it can be charged as a felony. If the stolen goods are valued at less than $950, then it is petty theft. However, if a person has prior theft offenses on his or her criminal record, then even if the stolen property is less than $950, the DA can charge the theft as a felony. This is often called “petty theft with priors”. As a Los Angeles and Pasadena criminal defense attorney, I help many of my clients fight misdemeanor and felony theft offenses.

“Medical Parole” for very sick inmates: SB1399: In an attempt to save money, state prisons can now release state prison inmates early who are incapacitated by health problems. Such inmates who are deemed to not be a threat to the community due to their extreme medical conditions would be released on “medical parole”. In many of these cases the inmates are already being treated in civilian hospitals and health facilities outside the prison. Before the new law, prison officials would have to guard the inmate 24 hours a day, even if the defendant was comatose or physically unable to move. This new law means that prison officials will no longer have to stand guard in hospitals where sick inmates are being treated because these inmates will have been released on parole.

Chelsea’s Law, Sex crimes: SB1844: This new law was signed on September 9, 2010 by former Gov. Arnold Schwarzenegger. Chelsea King was a 17-year-old girl who was raped and murdered in a park in San Diego by a convicted child molester. Chelsea’s Law allows sentences of life without the possibility parole for people who kidnap, drug, bind, torture or use a weapon while committing a sex crime against a minor. This new laws allows a judge to sentence first time offenders to a sentence of life with no parole. Chelsea’s law also increases other penalties for those charged with child molestation. Lifetime parole with GPS monitoring is now required for those convicted of serious sex offenses, such as forcible sex crimes against children under 14.

Medical Marijuana: New Restrictions on Dispensaries: Medical marijuana collectives including storefront dispensaries and mobile outlets may not operate within 600 feet of a school.

Possessing Less Than An Ounce of Marijuana is Now an Infraction: SB14449: Before this year, possessing any amount of marijuana less than an ounce was a misdemeanor punishable by a $100 fine. The new law, SB 14449, reduces the punishment for possessing less than an ounce of marijuana to an infraction with a fine no more than a $100. An infraction is not a criminal offense, which means a person punished under this statute cannot be arrested for the offense, is not required to appear in court, and will not suffer a criminal conviction. This law was long overdue. As a Pasadena criminal defense lawyer, I represent many people charged with drug offenses, including those charged with marijuana offenses.

Infractions Can Now Be Expunged: Under the revised Penal Code 1203.4, most traffic offenses and some non-traffic offenses are now eligible for expungement (record clearing). Previously, only misdemeanors and some felonies were available for expungement. Now, those convicted of infractions such as driving with a suspended license, petty theft as an infraction, marijuana possession, to name a few. The infractions are now eligible for dismissal pursuant to the expungement statute after one year from the date of conviction. As a Los Angeles expungement attorney, I have successfully cleaned many of my client’s criminal records. After my client’s records are cleaned and their criminal and infraction charges dismissed, these clients now have a better chance of finding gainful employment with employers who conduct background checks. The irony is that before this law to effect in January 2011, people with felony theft convictions could earn a dismissal through an expungement but someone convicted of an infraction for a petty theft could not get that infraction dismissed from their record. Now they can!

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Pasadena Criminal Attorney

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